Long v. Long
| Decision Date | 04 April 1968 |
| Docket Number | No. 1,No. 43463,43463,1 |
| Citation | 117 Ga.App. 606,161 S.E.2d 417 |
| Parties | Sara M. LONG v. Bertha B. LONG |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where on a motion for reconsideration of the sustaining of a general demurrer to a petition there was a prayer that the judgment be vacated and set aside and a rule nisi was issued thereon, an appeal within 30 days after on order denying the motion is timely.
2. (a) Where an order has been regularly entered in the court of ordinary declaring that no administration is necessary on the estate of one who died intestate, so long as that order is outstanding the court of ordinary has no jurisdiction to entertain an application to have an administrator appointed for the decedent's estate.
(b) A judgment or decree which does not appear to be void from the face of the record is binding between the parties thereto until it is set aside by a direct attack in the court wherein it was obtained.
(c) On an appeal from the court of ordinary to the superior court, the latter has no greater powers on the matter than did the court of ordinary; the jurisdiction is the same.
Emmett L. Long died intestate December 20, 1964 while a resident of Jones County. Mrs. Bertha Batchelor Long, alleging herself to be his widow and sole heir at law, applied for and obtained in the Jones Court of Ordinary an order declaring no administration on his estate to be necessary. Thereafter Mrs. Sara M. Long applied to the Jones Court of Ordinary for the appointment of an administrator of his estate, alleging that the decedent had left a valuable estate and that she was his sole heir at law, by reason of the following: She had married the decedent in due form of law June 28, 1947, and had never been legally divorced from him to the time of his death. She alleged, however, that a divorce decree was rendered between them in Bibb Superior Court December 5, 1955, of which she had been unaware until some time in January, 1967; that attached to the petition for divorce which decedent filed against her and on which he obtained the decree, was an acknowledgment of service purporting to be signed by her, but that the signature was a forgery and was not in fact made by her, she having been a patient at the Milledgeville State Hospital suffering from a mental illness at the time.
The court of ordinary sustained Mrs. Bertha Batchelor Long's general demurrer to the application for the appointment of an administrator, and the applicant appealed to Jones Superior Court, where, after consideration of the matter, the general demurrer was again sustained and the application dismissed October 30, 1967. A motion to reconsider its ruling, with prayer that the judgment sustaining the demurrer be vacated and set aside, was filed and on November 27, 1967 that motion was denied.
On January 9, 1968, applicant filed her notice of appeal from the order of November 27, 1967, 'which said order overruled the motion of plaintiff to set aside the court order of October 30, 1967, sustaining the defendant's general demurrer.' Error is enumerated as to both orders.
Robert E. Barfield, Macon, for appellant.
George L. Jackson, Gray, for appellee.
1. The question arises as to whether the appeal must be dismissed because the original order sustaining the general demurrer was entered more than 30 days prior to the filing of the notice of appeal. If the motion to reconsider had not carried a prayer that the judgment be vacated and set aside this position might have merit. LeCraw v. L.P.D., Inc., 114 Ga.App. 281, 150 S.E.2d 927. But since there was a prayer to set the judgment aside with a rule nisi thereon, we conclude that there was no final judgment from which an appeal could be entered until that motion was disposed of. Pazol v. Citizens National Bank of Sandy Springs, 112 Ga.App. 161, 144 S.E.2d 117; State Bank of Leesburg v. Hatcher, 106 Ga.App. 735, 128 S.E.2d 339. In any event, however, it would appear from the holding in Van Dyke v. Van Dyke, 120 Ga. 984, 48 S.E. 380, that an appeal will lie from the order denying the motion to...
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...`binding upon the parties until set aside by a direct attack in the court where it was obtained. (Cits.).' Long v. Long, 117 Ga.App. 606, 608(2), 161 S.E.2d 417 (1968)." Peters v. Hyatt Legal Svcs., 211 Ga.App. 587, 589, 440 S.E.2d 222 (1993) (physical precedent only). But the Supreme Court......
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..."binding upon the parties until set aside by a direct attack in the court where it was obtained. [Cits.]." Long v. Long, 117 Ga.App. 606, 608(2), 161 S.E.2d 417 (1968). The facts upon which Peters relies clearly suggest a viable judicial remedy under OCGA § 9-11-60. Nevertheless, Peters has......
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